South Africa: A Matter Of Taste

Last Updated: 11 March 2015
Article by Waldo Steyn

Most Read Contributor in South Africa, September 2016

A court in the USA recently ruled on a matter involving that rarest of creatures, a taste trade mark -   something that's referred to by those  who like to flaunt their vocabulary as a 'gustatory trade mark'.  In the case of New York Pizzeria v Ravinder Syal the issue was whether a restaurant could claim trade mark rights to a particular pizza taste.

The US court said no. It raised the same objections that have been raised in similar cases in the past. It accepted that 'flavour can carry meaning', but it said that 'meaning entitles a mark to trademark protection only if it distinguishes the source of the product'. It said that 'it is unlikely that flavours can ever be inherently distinctive because they do not automatically suggest a product source.' It said that 'functional product features are not protectable'.

In an earlier US case, the US trade mark authority rejected an application by the pharmaceutical company NV Organon, which had applied to register an orange flavour that was used for an anti-depressant drug. The tribunal said that the application fell foul of the functionality prohibition, because flavouring 'performs a utilitarian function that cannot be monopolized without hindering competition in the pharmaceutical trade.'  But it also said that it had difficulty understanding how a taste can act as a trade mark, when consumers only taste goods after purchase. It said this:

'Further it is not clear how taste would as a practical matter function as a trademark. A consumer generally has no access to the product's flavour prior to purchase... unlike colour, sound and smell, there generally is no way for consumers routinely to distinguish products by sampling them before they decide which one to purchase...consequently it is difficult to fathom exactly how a flavour could function as a source indicator in the classic sense, unlike the situation with other non-traditional trademarks such as colour, sound and smell to which consumers may be exposed prior to purchase.'

The functionality issue was also raised in the New York Pizzeria case, where the court said this:

'If the hurdle is high for trademarks when it comes to the flavour of medicine, it is far higher – and possibly insurmountable – in the case of food. People eat, of course, to prevent hunger. But the other main attribute of food is its flavour, especially restaurant food for which customers are paying a premium beyond what it would take to simply satisfy their basic hunger needs. The flavour of food undoubtedly affects its quality, and is therefore a functional element of the product.

The issue has also been considered in the EU. In a case involving a pharmaceutical company, the tribunal rejected an application that comprised an artificial strawberry taste to be applied to pharmaceuticals. The tribunal raised multiple objections. It said that consumers don't perceive tastes as trade marks. It said that tastes are too indefinite and incapable of comprehension by competitors and the public. It latched on to the fact that a strawberry taste is commonplace, given that drugs companies often need to mask the fact that the remedies they're selling to make you feel better, may taste rather unpleasant. It said this:

'Any manufacturer... is entitled to add the flavour of artificial strawberries to these products for the purpose of disguising any unpleasant taste that they might otherwise have or simply for the purpose of making them pleasant to taste... moreover, the taste is unlikely to be perceived by consumers as a trade mark; they are far more likely to assume that it is intended to disguise the unpleasant taste of the product.'

So what about South Africa? I'm not aware of any taste trade mark that's been registered in South Africa, although on the face of it the definition of a 'mark' in the South African Trade Marks Act is wide enough to cover a taste – 'any sign capable of being represented graphically'.

I suspect that many of the same objections would be raised to an application for a taste trade mark in South Africa. Is a taste really perceived as a trade mark? Does the taste really function as a badge of origin or source indicator, given that the customer only experiences it after purchase? In many cases there may be issues of non-distinctiveness. There may be arguments about whether the taste is really separable from the product, what the Americans describe as the 'functionality issue' -  our law deals with functionality in various ways , for example by prohibiting registration of anything that consists exclusively of a sign or indication that designates the kind, quality or other characteristics of the goods.

Finally, can a taste be registered in such a way that makes it possible for people to understand what the registration is, and what it is that they're not allowed to use? Although I understand that the European authorities are rethinking the requirement that a trade mark must be capable of graphical representation, our law does still require this. This requirement has been defined in the EU to mean that the trade mark that's filed must be 'clear, precise, self-contained, easily accessible, intelligible, durable and objective' and this definition seems to be followed here. Although the definition has been interpreted to mean that Pantone numbers might be acceptable for colour trade marks, and musical notations or sonograms might do for sound trade marks, it has caused real problems with smell trade marks, where chemical formulae, odour samples, and written descriptions have all been rejected. I suspect that taste trade marks pose the same sort of challenges as smell trade marks.

Perhaps taste is an example of something that may be a trade mark in the wider and looser sense - for example, 'that strong pepperoni taste is that restaurant's trade mark' – but it isn't a trade mark in the legal sense of a protectable source indicator.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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